Can you say “my Prof sucks” on Facebook?

A nice little case popped out of the Alberta Court of Appeal on Wednesday of this week. A couple of dudes at the University of Calgary were none too happy with a prof of theirs and took to Facebook to express their displeasure. The University was not pleased. Four years later, we’ve got a resolution. So can you say what you want on Facebook? Let’s find out.

The case is Pridgen v. University of Calgary, and you can read the full decision here (PDF) if you like reading dense 44-page judgments of legal discussion. Since you obviously don’t, I’ll fill you in on the important deets. As usual, I read it skimmed it so you don’t have to.

Keith and Steven Pridgen were twin brother undergrads at the University of Calgary, and Professor Aruna Mitra was their prof for a course called Law and Society (irony alert). Professor Mitra was obviously not any of the students’ fave, as some of them created a FB group called “I no longer fear hell, I took a course with Aruna Mitra” (a little trite, but not bad). The group as usual had a Wall for posting, and the twins used it. Students posted things like she was “inept”, “awful”, “illogically abrasive” and “inconsistent.” My heavens, those U of C students are polite! You call that internet rantings? Kids today, I just don’t understand them.

Anyway, the Prof was none too happy with the group and the Wall, and told the University administration. The University jumped into action, and charged a bunch of students with “non-academic misconduct” under the U of C’s internal conduct codes for students. How did that turn out? Well:

Ultimately, Dean Tettey found all of the student members of the Facebook group guilty of non-academic misconduct, regardless of the nature of their comments and, in some cases, even though they had made no comments at all. (my bolding for emphasis on the ridiculous)

The lesson here is obvious: NEVER JOIN ANY FACEBOOK GROUPS, EVER. This Dean sent a letter to Keith Pridgen, putting him on probation for 24 months, asking him to apologize, and refrain from posting anything more defamatory about the prof. Before you jump to conclusions, the Dean also wrote:

I want to state emphatically that you are not being sanctioned for expressing your opinions on this site. You are at liberty to do so. It is important, however, that your views are not based on false premises, conjectures, and unsubstantiated assertions that are injurious to individuals or institutions and their hard-won reputations.

Sure, whatevs. Anyway, the guys appealed to the University Committee of something or other, and the Committee upheld the Dean’s decision. The students would not be deterred, so they asked the Court of Queen’s Bench (the main “first instance” court in Alberta) to review the decision. The Court did the right thing (imho, I guess), and ruled that the decision breached the students’ rights under the Canadian Charter of Rights and Freedoms. Let us pause and bask in the glow of one of the rights that the Charter grants to all of us:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

Well, the University would not stand for all this Charter bullshit, and appealed to Court of Appeal, saying that the Charter should not apply to the actions of a university. Because, really, why should a place that promotes academic thought be subject to freedoms? So that’s what this decision is all about. Actually, there were also a lot of administrative law questions, but that crap is boring so we’ll just pretend it didn’t happen.

Let’s pause again, this time to explain what the Charter really does. The Charter prevents governments and government bodies from infringing on the rights the Charter grants (in its section 32); subsequent court decisions have said that the Charter also applies to “governmental activities” that are done by non-government bodies. The Charter does nothing for private individuals in private actions. If I hire you to be my lackey (I am in desperate need of a lackey) I can infringe your Charter rights all I want. So that was the University’s argument, that the U of C (which is a public university) is not subject to the Charter because they are not part of government and / or this was not a governmental activity.

But the Court of Appeal did not buy that, as at least one of the three judges of the Court of Appeal stated that the Charter does in fact apply to the University when it disciplines students. Another judge didn’t really care about that, as he found other reasons to side with the Pridgens. And the third judge said that whether or not the Charter applies (though reading his decision seems to imply he does think it applies), freedom of expression is protected in other ways.

So why does the Charter apply? Well, in Alberta they have something called the Post-Secondary Learning Act (PSL Act) which established the Alberta universities like the U of C and grants them all sorts of powers and responsibilities. So The Honourable Madam Justice Paperny decided that:

The issue is whether in disciplining students pursuant to authority granted under the PSL Act, the University must be Charter compliant. The statutory authority includes the power to impose serious sanctions that go beyond the authority held by private individuals or organizations. Those sanctions include the power to fine, the power to suspend a student’s right to attend the university, and the power to expel students from the university: PSL Act, section 31. Accordingly, Charter protection for students’ fundamental freedoms, including freedom of expression, applies in these circumstances.

W00t! Screw you, Professor (name redacted), you suck!

Then the judge did what judges are wont to do, waxed poetically about the issue at hand. This quote will be used by lawyers for years to come, I guarantee it:

One can no longer maintain a pastoral view of university campuses as a community of scholars removed from the rest of society. This does not mean that a university should not be able to direct its own affairs, certainly in academic matters, free from government interference. It should. Respecting Charter rights in disciplining students will not, in my view, inhibit it in the exercise of that institutional independence or the exercise of academic freedom. Rather, it will promote the institution as a place of discourse, dialogue and the free exchange of ideas; all the hallmarks of a credible university and the foundation of a democratic society.

Amen, sister! Err, I mean amen, The Honourable Madam Justice Sister.

So remember, when the Charter applies, you can say what you want (for the most part) on Facebook. But when the Charter doesn’t apply, you may not be protected on FB or anywhere else online. So to my newly-hired lackey who just tweeted “@almendelsohn you blow #realtruth” – you’re fired.

Wow, may I propose as my first responsibly, to build a device, not airborne, but one that will take people from the center of Toronto to the Center of Montreal in under two hours. This device should be able to carry up to a thousand passengers an hour. In many of the books I have read they call it a “train”. I will call it a high speed train.

About Me

Allen Mendelsohn is me. I am a lawyer specializing in internet law working out of Montreal, though sometimes I do it in front of the U.S. Capitol. That should tell you what you need to know about internet law in Canada. I also warp young legal minds at the Faculty of Law at McGill.